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Judgment
Dr. P.S.N. Prasad, J
This Joint Application has been filed by the Petitioner Companies under Section 230 to 232 of the Companies Act, 2013 read with the Companies (Compromise, Arrangement and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, for the purpose of the approval of the Scheme of Amalgamation. The copy of the Scheme has been placed on record.
A perusal of the petition revels that initially the First Motion application seeking direction for dispensing with the meeting of the Shareholders and Creditors of the Transferor Companies and Transferee Company was filed before this bench vide in CAA - C.A. (CAA) - 171 (ND)/2019 and based on such joint application moved under Section 230-232 of the Companies Act, 2013, the meetings of the Equity Shareholders, Preference Shareholders, Secured Creditors and Unsecured Creditors of both the companies were dispensed with, vide order dated 10.12.2019.
Subsequently, the second motion petition was filed before this bench wherein vide order on 03.01.2020, the petitioners were directed to carry out publication in the newspapers 'Business Standard' (English - Delhi Edition) as well as in 'Jansatta' (Hindi -Delhi Edition). In addition to the public notice, notice were directed to be served on the Central Government through Regional Director (Northern Region), Registrar of the Companies (NCT of Delhi and Haryana), Official Liquidator (New Delhi) and jurisdictional officer of the Income Tax Department.
It is seen from the records that petitioners have filed the affidavit of compliance before this bench dated 31.01.2020 affirming the compliance of the order passed by this Tribunal dated 03.10.2020. In perusal of the affidavit discloses that the petitioners have effected the newspaper publication on 27.01.2020 as directed in relation to the date of the hearing of this petition. Further, the affidavit also discloses that copies of the petition have been duly served to the Regional Director, Northern Region, Registrar of the Companies, NCT of Delhi and Haryana, Official Liquidator (New Delhi) and the Income Tax Department in compliance of the order and in proof of the same acknowledgement by the respective offices have also been placed on record.
The Regional Director has filed its representation in which no objection against the scheme has been raised by the Regional Director/Registrar of Companies and stated that:
"That as per the report of Registrar of Companies, the Transferee Company has not filed its financial statements for the FY 18-19 which is in contravention of Section 137 of the Companies Act, 2013."
The Transferee Company in its Reply Affidavit dated 26.02.2020 has stated that the Transferee Company has filed a copy of the financial statements for the Financial Year 2018-19, as per Section 137 of the Companies Act, 2013 with the Registrar of Companies, NCT of Delhi and Haryana and same has been approved and taken on record by the Registrar of Companies, NCT of Delhi and Haryana. The Ld. Counsel of the Regional Director, Northern Region does not have any objection to the reply filed by the Transferee Company.
The Official Liquidator has filed its Report wherein no specific objection has been raised against the approval of the scheme. It is submitted in the report that that the official liquidator has not received any compliant against the proposed Scheme from any person/party interested in the Scheme in any manner and the affairs of the Petitioner Companies do not appear to has been conducted in a manner prejudicial to the interest of its members, creditors or public interest.
It is submitted that the department of the Income Tax has also filed its report in respect of the Transferor Companies and Transferee Company where in no objections has been raised against the sanctioning the scheme. In case of the Transferor Company No. 1, 2, 3, 5, 6, 7, 8, 9, 10 and Transferee Company, there are no outstanding demands raised by the Income Tax Department. In case of Transferor Company No. 4, there are outstanding demands for the AY 2006 -07 raised by the Income Tax Department, wherein the Transferor Company No. 4 in its Reply Affidavit has stated that all the outstanding demands in favour of the Transferor Company No. 4 shall be paid and honored by Transferee Company.
Further the Certificate of respective statutory auditors of the Petitioner Companies have been placed on the record to the effect that Accounting Treatment proposed in the Scheme of Amalgamation is in conformity with the Accounting Standard notified by the Central Government as specified by under the provisions of Section 133 of the Companies Act, 2013.
In view of the foregoing, upon considering the approval accorded by the members and creditors of the petitioner Companies to the proposed Scheme, and the affidavit by the Regional Director, Northern Region, Ministry of Corporate Affairs and the report of the Official Liquidator and, there appears to be no impediment in sanctioning the present Scheme. Consequently, sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013. The petitioner shall however remain to bound to comply with the statutory requirements in accordance with the law.
Consequently, the scheme is hereby granted to the scheme under section 230 to 232 of the Companies Act, 2013.
The Petitioner Companies shall however remain bound to comply with the statutory requirements in accordance with law.
Notwithstanding the above, if there is any deficiency found or, violation committed que any enactment, statutory rules and regulation, the sanction granted by this court to the Scheme will not come in any way of action being taken, albeit, in accordance with the law, against the concerned persons, directors and officials of the petitioners.
While approving the Scheme as above, we further clarify that this order should not be construed an order in any granting exemption from payment of stamp duty, taxes including Income Tax, GST etc. or any other charges, if any, and payment in accordance with law or in respect of any permission/compliance with any other requirement which may be specifically required under any other law.
THIS TRIBUNAL DO FURTHER ORDER(S):
1) That the Transferor Companies stand dissolved without following the process of wound up; and
2) That all the property, rights and powers of all the Transferor Companies be transferred without further act or deed, to the Transferee Company and accordingly the same shall pursuant to Section 232 of the Act, be transferred to and vest in the transferee Company; and
3) That all the liabilities and duties of the Transferor Company, be transferred without further act or deed, to Transferee Company and accordingly the same shall, pursuant to Section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee Company;
4) That all the proceedings now pending by or against the Transferor Companies by continued by or against the Transferee Company; and
5) That all the employee of the Transferor Companies in Service, if any, on the date immediately preceding the date on which the Scheme takes effect, i.e. the effective date shall become the employees of the Transferee Company on such date without any break or interruption in service and upon terms and conditions not less favourable than those subsisting in concerned Transferor Companies on the said date.
6) That the Petitioner Companies shall within thirty days of the date of the receipt of this order cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered to the Transferor Companies shall be dissolved and the Registrar of Companies shall place all the documents relating to the Transferor Companies registered with him on the file kept by him in relation to the Transferee Company and the files relating to the all Petitioner Companies shall be consolidated accordingly; and
7) That any person interested shall be a liberty to apply to the Tribunal in the above matter for any directions that may be necessary.
The petition stand allowed of in the above terms.